LL D Bui Kien Dien
Lecturer,
The application of coercive measures in criminal procedures is indispensable for procedure-conducting agencies to achieve the objectives stipulated in Article 1 of the 2003 Criminal Procedure Code (the Code).
As a result, criminal procedure participants, especially arrestees, detainees, accused and defendants, might have their fundamental civic rights (the rights), such as the rights to body inviolability, freedom of travel and personal assets, restricted or temporarily deprived. Nevertheless, such restriction or temporary deprivation of the rights must comply with the law and serve the investigation and settlement of criminal cases.
In order to prevent the illegal restriction or infringement of the rights, the Code provides for the principle of “respect for, and defense of the fundamental rights of citizens.” Article 4 of the Code states “When conducting the procedure, heads and deputy heads of investigative agencies, investigators, directors and deputy directors of procuracies, procurators, presidents and vice presidents of courts, judges and jurors shall, within the ambit of their responsibilities, respect and protect the rights and lawful interests of citizens, regularly examine the lawfulness and necessity of applied measures, promptly cancel or change such measures if seeing that they are unlawful or no longer needed.” Accordingly, the responsibility of procedure-conducting persons to respect and protect the rights should be understood as follows:
First, in settling criminal cases, these persons must respect the rights of related persons and prevent acts that infringe upon them. Upon taking procedural acts, especially coercive ones that restrict or temporarily deprive of the civic rights of related persons, they must abide by the criminal procedure law and refrain from taking such “excessive” acts as physically abusing arrestees, destroying involved parties’ assets upon residence search or extorting depositions from the accused. When detecting acts that infringe upon the rights and legitimate interests of citizens, they are also obliged to employ appropriate legal tools to promptly stop these acts. For example, heads of investigative agencies must change or cancel groundless or unlawful decisions of their deputies or investigators, or procuracies must cancel groundless or unlawful decisions of investigative agencies or initiate criminal lawsuits against investigators whose acts show signs of a crime.
In addition, they also have to regularly examine the lawfulness and reasonability of measures they have applied in order to promptly remedy illegal acts or stop the restriction of the rights whenever the practical settlement of a criminal case render these measures unnecessary. For example, they should terminate or replace the measure of temporary detention with a lighter measure, such as bailment or ban on travel from residence, upon finding the temporary detention unlawful or no longer necessary.
Second, if these persons illegally restrict or infringe upon the rights, they must be strictly handled under law in order to assure justice and prevent similar acts in the future. Article 12 of the Code states: “In the course of conducting the procedures, procedure-conducting agencies and persons shall strictly implement provisions of law and take responsibility for their acts and decisions. Those who act against the law in making arrest, detention or seizure, instituting, investigating, prosecuting or adjudicating criminal cases or enforcing judgments shall, depending on the nature and seriousness of their violations, be disciplined or examined for penal liability.”
Accordingly, acts that infringe upon the rights in criminal proceedings will be considered crimes (under in Articles 123, 124, 125, 132, 280, 293, 295, 296, 298, 299, 300, 303 and 310 of the Penal Code) and infringers are subject to penal liability examination.
The responsibility of procedure-conducting agencies to respect and protect the rights has been uniformly provided in all criminal procedure legal documents of
In order to prevent crimes and facilitate the settlement of criminal cases, the application of coercive measures to restrict or temporarily deprive some rights of criminals or persons obstructing investigation activities is quite necessary. However, the restriction or deprivation of the rights must stem from objective requirements of the settlement of cases because justice, the ultimate goal of criminal proceedings, can no way be achieved at any price. Hence, procedure-conducting entities must carefully consider requirements of practical procedures, compatibility between obstacles and coercive measures to remove these obstacles, and possible undesirable impacts of these measures on the rights and legitimate interests of related persons, before deciding to apply these measures. In other words, the balance between the requirements of achieving the procedure objectives and guaranteeing the rights should be upheld in the practical settlement of criminal cases.
The responsibility of procedure-conducting agencies and persons to respect and protect the rights in settling criminal cases is also based on several practical grounds:
First, to determine facts of cases and to bring about justice, these agencies and persons are empowered by law to “apply every lawful measure to determine facts of criminal cases in an objective, versatile and full manner, to clarify evidence of crime and evidence of innocence and circumstances aggravating and extenuating the criminal liabilities of the accused or defendants” (Article 10 of the Code). Meanwhile, most procedural acts taken by these agencies and persons are coercive and can therefore lead to the restriction or temporary deprivation of some rights, which can be considered reasonable and lawful only when effected within the limits permitted by the criminal procedure law. Acts which go beyond these limits would infringe the fundamental rights of related persons.
Second, citizens participating in criminal procedures in different capacities can hardly defend themselves by preventing or remedying acts infringing upon their rights and legitimate interests. This is because procedure-conducting entities are empowered by the State to request procedure participants to strictly obey their orders, regardless of the reasonability of these orders, though they can later complain about or denounce illegal acts of procedure-conducting entities according to Chapter XXXV of the Code.
Other factors such as imbalance of power, places where procedures are carried out and psychological state of persons against whom coercive measures are applied can become insurmountable hindrances to these persons in protecting themselves from possible infringements. It can be said that whether the rights of procedure participants are properly respected or defended does not depend on these persons but on those empowered by the State to settle criminal cases and apply coercive measures on the grounds specified by the Code.
The Code’s provisions on the responsibility of procedure-conducting entities to respect and defend the rights of procedure participants are also important to the country’s internal and external relations because coercive measures, though serving as effective tools to prevent crimes and facilitate the settlement of criminal cases, are likely to exert some undesirable impacts on related persons’ inviolable rights to body, residence, mail, telephone, travel, etc., which are widely recognized and protected by all civilized nations. These provisions compel procedure-conducting persons to prudently consider the lawfulness and reasonability of procedural acts before taking them and to promptly cancel or change these acts if seeing they are unlawful or no longer needed. For example, only persons defined in Clause 1 of Article 86 of the Code can be kept in custody when custody is found necessary for the collection of documents and evidence to clarify circumstances of their criminal acts and verify their personal information to serve as grounds for instituting criminal cases against them, detaining or releasing them. If the measure of custody is wrongfully applied or found to be unnecessary, procuracies must issue decisions to cancel custody orders and immediately release persons kept in custody (Clause 3, Article 86 of the Code). Similarly, other deterrent measures and the measure of coercive distrainment of property must be canceled when they are found no longer necessary (Articles 94 and 146 of the Code).
This stipulation also serves as a legal ground for procedure participants to effectively protect their rights and legitimate interests whenever they are infringed upon by coercive measures applied by procedure-conducting entities by requesting the latter to respect and defend their rights or filing complaints about or denunciations against these measures according to the procedures specified in Chapter XXXV of the Code.
In order to end the groundless restriction or temporary deprivation of the rights and legitimate interests of and consequent injustice against citizens in criminal proceedings, which has been markedly remedied but still exists, further raising the quality of investigation, prosecution and adjudication activities, we suggest revision of some provisions of the Code as follows:
- To supplement Article 12 of the Code with the damage payment responsibility of procedure-conducting persons who illegally infringe upon rights and legitimate interests of citizens in the course of settling criminal cases as follows: “Those who act against the law in making arrest, detention or seizure, instituting, investigating, prosecuting or adjudicating criminal cases or enforcing judgments shall, depending on the nature and seriousness of their violations, bear civil, administrative or criminal liability.”
- To amend Clause 1, Article 58 of the Code as follows: “Defense counsels shall participate in the procedure from the date of issuance of decisions on custody of or institution of criminal cases against the accused” so as to take into account the right of persons held in custody who have given themselves up or confessed to defend themselves; and add to the end of Clause 1, Article 305 of the Code the phrase: “if the latter so agree.”
- To supplement Article 319 of the Code with another condition for application of summary procedures: “5. The accused and their lawful representatives agree to the application of summary procedures,” and add a new point to Clause 2, Article 57 of the Code: “c/ The accused or defendants in cases settled according to summary procedures.”
- To add a new clause (Clause 1) to Article 80 of the Code: “1. Arrest of the accused or defendants for temporary detention is applied when there exist the grounds specified in Clause 1 or 2, Article 88 of this Code.”
- To amend Article 85 of the Code as follows: “The arrest warrant issuers and the arrestee-receiving investigative agencies shall immediately notify the arrest to the arrestees’ families or other persons chosen by these arrestees, administrations of communes, wards or townships where the arrestees reside or the agencies or organizations where they work. If the arrestees are foreigners, the arrest warrant issuers and the arrestee-receiving investigative agencies shall immediately notify the arrest to consulates or diplomatic missions of the countries of which the arrestees are citizens or related inter-governmental organizations.”
- To add to the end of Paragraph 1, Clause 2, Article 146 of the Code the following sentence: “No distrainment shall be made of property which must not be distrained as specified in Article 87 of the Law on Enforcement of Civil Judgments.”
- To amend Paragraph 3, Clause 1, Article 258 of the Code as follows: “Within seven days after the judgment becomes legally valid, the convict may send an amnesty or penalty commutation petition to the State President,” and to add to the end of Clause 3 of Article 224 the following paragraph: “In case the defendant is sentenced to death, his/her right to send an amnesty or penalty commutation petition to the State President within seven days after the judgment becomes legally valid must be clearly stated in the judgment.”
- To add a new clause (Clause 1) to Article 303 of the Code: “1. The arrest, custody or temporary detention of minors may only be applied as the last resort and in the shortest appropriate period.”
- To supplement Articles 80, 81 and 82 of the Code with the following sentence “Using force against or taking other acts infringing upon the life, health, honor or dignity of arrestees when it is unnecessary is prohibited.”
- To add to the beginning of Paragraph 2, Clause 2, Article 132 of the Code the procedure of compulsory audio recording of interrogations when the accused is a foreigner or a minor or cannot speak Vietnamese.
We also suggest the following actions to be taken:
First, further improve professional qualifications and skills of procedure-conducting persons. This is necessary because the professional capacity and qualifications of some procurators, investigators, judges and court staffs remain limited.
Second, elevate the sense of responsibility of procedure-conducting persons in the course of settling cases in general and in respecting and defending the rights and legitimate interests of citizens in particular. To this end, these persons should be regularly educated in the sense of responsibility and professional ethics and trained in legal and professional knowledge.
Third, improve every citizen’s legal awareness. This is a complementary condition for the principle of respect for and defense of fundamental civic rights to be optimally realized. Only with an adequate awareness about the obligations and powers of procedure-conducting entities in settling criminal cases as well as those of citizens, particularly those participating in criminal procedures, can citizens protect their own and others’ fundamental rights with appropriate law-provided tools.-